The Gazette 1987

GAZETTE

APRIL 1987

Service out of the Jurisdiction

and Choice of Law in Tort Cases

T h i s a r t i c le w i l l f i r st c on s i d er t h e p r i nc i p l es u p on w h i c h t h e

H i g h Co u r t w i l l g r a n t l e a ve t o s e r ve o u t s i de t h e j u r i s d i c t i on

in t o rt cases under Or der 1 1 , r .1 (f) of t he Ru l es of t he Supe r i or

Co u r t s 1 9 8 6 . T h e c u r r e nt l egal pos i t i on as r ega r ds Or der 1 1 ,

r. 1 (f) is c o n s i d e r ed in t h e u n a n i mo us j u d g m e n t of t he

S u p r e me Co u r t g i v en by Wa l s h J . in

Grehan -v- Medical

In-

corporated

and Valley Pines Associates

Second, it will be

necessary to consider the position regarding choice of l aw in tort.

The choice of l aw process may be explained as follows: once a

court assumes jurisdiction in the case of a tort wh i ch was com-

mitted in a foreign country or a tort wh i ch was commi t t ed wi t h in

the jurisdiction but wh i ch contained some foreign element, it may

before considering the rights and liabilities of the parties in the

case, first go through a selection process known as "choice of l aw"

in order to determine by what l aw those rights and liabilities are

to be determined. Finally, the case for reform of the choice of l aw

rules will be considered and options for statutory reform will be

suggested.

A l t hough the private inter-

national law of tort has not

heretofore featured much in the

Irish courts, its importance will, it

is submitted, increase for a number

of reasons. First, it appears follow-

ing

Grehan's

case that a court

must consider the choice of law im-

plications when deciding whether

to permit service out of the jurisdic-

tion. Second, when the jurisdic-

tional provisions of the EEC

Convention on Jurisdiction and the

Enforcement of Judgments in Civil

and Commercial Matters

, which

are quite liberal in regard to matters

of the Central Office.

No sum-

mons for service out of the jurisdic-

tion, or of which notice

is given

out of the jurisdiction, may be

issued without the leave of the

Court.

Service out of the jurisdic-

tion of an originating summons or

notice of an originating summons

may be allowed by the Court in the

cases specified in Order 11. In this

regard, it was observed in

Grehan's

case:

"This arises in situations in

which the defendant is not pre-

sent within the jurisdiction but in

which the case is so closely con-

nected with Ireland or with Irish

law that there is a justification for

it being tried within this juris-

diction. 0 . 1 1 enumerates the

circumstances in which jurisdic-

tion may be assumed. This form

of procedure was first provided

for in the Common Law Pro-

cedure Act 1852 and the cases

in which it could be exercised

were specified in the Rules of

Court. This was a modification

of the common law position

whereby courts exercised juris-

diction only where the defen-

dant was served w i th the

process within the jurisdiction or

submitted to the jurisdiction."

A number of general points

emerge from the Irish cases. First,

it is clear that the matter is one en-

tirely at the discretion of the

Gabriel J . McGa nn,

B . A . (Mod ), LL .M. (Yale),

Barrister-at-Law

relating to tort, come into force in

the State, it is also possible that

cases involving Irish choice of law

rules will come before the Irish

courts more often than they have

in the past. Third, in view of the in

creased mobility of persons and

products, it is also more likely that

our courts will be asked to hear ac-

tions based on foreign torts.

Order 11 - service out of the

jurisdiction

As soon as an originating summons

is prepared and its indorsement

duly drafted, it must be issued out

V I EWPO I NT

(from p.107)

the beat" training period com-

mences, should lead to the prac-

tical experience aspects of the

training programme being taken

more seriously than they have been

in the past.

Even these recommendations

however are unlikely to bear full

fruit until there is seen to be a

change in the attitude of the senior

officers of the force (and of the

Department of Justice) to the

whole question of garda training.

The narrow approach of the past

has not been successful and it is

clear that much of any success

there has been in the training pro-

gramme has been due to the

dedication of those officers who

have been entrusted with the

supervision of the programme

coupled with what must have been

a generally high quality of recruits

to the force.

If there is a criticism to be made

of the format proposed for the actual

training programme a "triple decker

sandwich programme" which en-

visages the students spending

three periods at the garda college

interspersed wi th t wo lengthy

periods of on the job training during

a t wo year course, it is that it may

be too complex. The Committee's

proposals to fit the t wo periods of

on the job training into the five

layer programme have been care-

fully worked out but it must be said

that the logistics of operating such

a sophisticated sandwich course

may prove extremely difficult in

p r ac t i ce. There are a l ways

arguments about whether sand-

wich courses should end with on

the job training or with a return to

the classroom. Without wishing

to detract from the ideas put

forward by the Committee it may

prove necessary in practice to

restrict the sandwich to a four layer

course.

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